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What next for European nationals living and working in the UK?

At the end of June, the government published its paper entitled "Safeguarding the position of EU Citizens living in the UK and UK Nationals living in the EU", which set out the government's opening proposal as part of the Brexit negotiations.

The government envisages a simplified process by which European nationals can retain immigration permission to live and work in the UK after Brexit. The key elements are as follows:

Nothing will change for European nationals while the UK remains a member of the EU.

After the UK leaves the EU, the UK will create new rights for qualifying EU nationals resident in the UK before Brexit.

EU nationals who have been resident in the UK before a "specified date" and who have completed a period of five years' continuous residence in the UK can apply for "settled status". Individuals with settled status would be able to permanently reside in the UK in any capacity, undertake any lawful activity, access public funds and services, and apply for British citizenship.

EU nationals who became resident in the UK before the "specified date" and who have not accrued five years' continuous service at the point of Brexit will be able to continue to remain resident in the UK until they have accumulated five years' continuous residence at which point they can apply for settled status.

EU nationals who arrived after the "specified date" would be allowed to remain in the UK for a temporary period, but would not be guaranteed settled status.

The "specified date" will be no earlier than 29 March 2017 and no later than the date of the UK's withdrawal from the EU. As the press has reported, this is expected to be a key point of negotiation as the EU has indicated that the specified date should be the date of Brexit.

Family members who joined a qualifying EU national in the UK before Brexit would be able to apply for settled status after five years. However, family members joining an EU citizen after Brexit will either be subject to the current rules that apply to family members wanting to join non-EU nationals (including the need for certain financial requirements to be met) or any separate post-Brexit immigration provisions put in place.

Qualifying EU nationals will have to apply for a residence ID card. The government has said that the application process will be kept as smooth and simple as possible and it will seek to rely on existing data which it holds (e.g. PAYE information) to evidence individuals' residence in the UK. It would appear that qualifying individuals will not need to supply the wealth of documentary evidence that is currently required to obtain permanent residence. However, anyone with permanent residence will be required to reapply under the new system.

In order to avoid a rush of applications in the run up to Brexit, qualifying EU nationals can apply for up to two years following Brexit and the intention is that this will reduce the workload of the Home Office of dealing with 3 million EU citizens currently resident in the UK.

What should European nationals be doing?

EU nationals should consider whether they wish to apply for permanent residency under the existing arrangements or whether they will rely on the new system. While the new system might be less onerous, reasons to apply for permanent residency now include:

Certainty – there are no guarantees that the government's proposal, or something similar to it, will be implemented if there is 'no deal' and, even if that is the case, the government is unlikely to remove permanent residency status (granted under UK law) from individuals.

Cost – the permanent residency application process costs £65 per person. Costs are likely to go up under any future European immigration system.

Citizenship – obtaining British citizenship is the ultimate objective for some European nationals and, at present, permanent residency is a pre-requisite for making an application.

What can employers be doing?

The issue of immigration in light of Brexit has undoubtedly led to uncertainty for EU nationals and this has impacted on the stability and productivity of workforces, particularly in the food and drink industry. The proposals from the government are a welcome step in the right direction to reassure employers that the EU nationals in the UK will not be forced to leave. Yet many employees will not understand their options and we have been helping employers provide immigration briefings to their European employees so that individuals can make an informed decision about their and their families' futures in the UK.